Does Bombay Tenancy Act debar passing on of Agricultural Land to a non-agriculturist through Will? Supreme Court answers
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Does Bombay Tenancy Act debar passing on of Agricultural Land to a non-agriculturist through Will? Supreme Court answers

Shruti Mahajan

The Supreme Court has held that agricultural land cannot stand assigned to a non-agriculturist under the Bombay Tenancy and Agricultural Lands Act even through a Will or testament (Vinodchandra Sakarlal Kapadia v. the State of Gujarat).

The Supreme Court Bench of Justices UU Lalit, Indu Malhotra, and AS Bopanna was deciding an appeal filed against the decision of the Gujarat High Court which held that agricultural land cannot be transferred to a non-agriculturist, even through a Will.

Affirming this decision, the Supreme Court dismissed the appeals and affirmed that Section 43(1) of the Act restricts such transfer of land.

In the instant case, agricultural land was bequeathed upon the appellant, who is not an agriculturist. Subsequently, through orders of the Mamlatdar and the Deputy Collector, the land vested with the state in light of the Bombay Tenancy and Agricultural Lands Act.

While examining the scope of the Act and its provisions, the Supreme Court noted that the intent behind the legislation was to protect the interests of persons fro disadvantaged categories. The Court said,

“The provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the concerned authorities, is to be seen in that light as furthering the cause of legislation.”

During the course of the arguments, the appellant had contended that the transfer of land prohibited by the Bombay Tenancy Act pertains to transfer by a living person through sale and other forms, where consideration is involved. The Act does not bring under its purview testamentary dispositions and transfers made through Wills, it was argued.

Further, it was claimed that the Indian Succession Act, a Central Act, would take precedence over the provisions of the state legislation in question, given that land laws are a subject under the Concurrent List.

The Court, however, concluded that the term “assignment” used in the Bombay Tenancy Act to restrict the transfer of land to non-agriculturists, also includes testamentary disposition under its purview.

In doing so, the Court held that a previous judgment delivered by the Supreme Court Bench of Justices Madan Lokur and AK Goel in the case of Mahadeo v. Shankuntalabai on this aspect is incorrect. In the Mahadeo judgment, the Court held that a plain reading of the provision would show that testamentary disposition would not be included in the purview of Sections 43 and 63 through which parting with land in favour of non tillers is barred. This decision now stands overruled by the three-Judge Bench in the instant case.

The Bench said that principle laid down by the Apex Court in the 1986 case of Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala has “stood the test of time”. In that case, the Court held that “a tenancy governed by a statute which prohibits assignment, cannot be willed away to a total stranger.”

“The expression “assignment” in Sections 14 and 27, if understood in light of the decision of this Court in Bhavarlal which has consistently been followed, must include testamentary disposition.”
Supreme Court

The scheme of the legislation, the Court elaborated, is to effectuate distribution of the land to disadvantaged persons. The Act contains a priority list of entities wherein the cultivating tenant is the first person to be given the benefit and the opportunity to become the owner of the land.

Therefore, when a transfer is effectuated, it is expected that the transferee cultivates the land themselves and does not transfer it to another. Laying down the requirement under the Act, the Court specifies that should the assignee not wish to cultivate the land, the Act requires the same to go to another person principally dependent on agriculture. The judgment states,

“If a tenant or any other person from the priority list is conferred ownership in respect of the agricultural land or when a landlord is allowed to retain the land which was surrendered by his tenant, each one of them is obliged to cultivate the land personally. In case any of them is unwilling, the land must be given to those who principally depend upon agricultural operations for their sustenance. If a person is a beneficiary of such statutory purchase and wishes to transfer his holding the law obliges that he must take prior sanction from the Collector.”

The authorities in this regard are also required to check if the transferee is an agriculturist and fulfills other requirements under the Act before giving effect to the assignment of land.

Therefore, if the testamentary disposition is left out of the purview of Section 43, the intent to establish the direct relationship of a tiller with the land and the requirement to ensure that an obligation to personally cultivate the land might be rendered otiose.

"The construction put on the expression “assignment” appearing in Section 43, therefore, has to be consistent with the legislative scheme. In the context of the entire scheme, the term “assignment” used in Section 43 of the Act must include testamentary disposition as well. By adopting such construction, in keeping with the law laid down by this Court, the statute would succeed in attaining the object sought to be achieved.

On the other hand, if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance, but may also have serious impact on agricultural operations."

The Court thus upheld the decision of the Gujarat High Court and ruled that the bar on transfer of agricultural land under the Bombay Tenancy Act to a non-agriculturist would also apply to testamentary dispositions.

Senior Advocate Sanjay Parikh and Advocate Raghavendra Srivatsa appeared for the appellants. Advocate Aniruddha Mayee appeared for the State of Gujarat.

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